Crucial domain name issues in e-commerce

DOMAIN NAMES have evolved rapidly into a common feature used to identify a website's location while at the same time expressing the name, brand or other identifying features of the person, business or organisation using the domain name, says a report of the United Nations Conference on Trade and Development on `E-commerce and development'. As the use of information and communications technology (ICT) and e-commerce spreads in developing countries, domain names are expected to become important for commercial and non-commercial uses in these countries, according to the report.

The development of a national domain name system (DNS) infrastructure is an important means of facilitating the online exchange of information in developing countries and thus creating a valuable resource for communication, education and business, notes the report. At the same time, however, domain names and the DNS present a complex array of commercial, technical, policy and legal questions that highlight many of the cross-border issues presented by the Internet and e-commerce. Developing countries need to understand these issues and formulate responses that are appropriate for the country's online community, satisfying relevant legal, cultural, economic, language and other dimensions.

Policy decisions are required in relation to developing countries' national country code top-level domains (ccTLDs), which foster not only ease of registration of domain names but also overall confidence in the ccTLD space. There is no single model for structuring a ccTLD that would meet the needs of all countries or territories.

In developing countries, ccTLD administrators can develop appropriate policies to meet the needs of their community, with the overall goal of promoting access to and use of the Internet. In particular, authorities in developing countries should be aware of the architecture and functioning of the DNS so that they can establish a reliable DNS environment to ensure that predictable results are achieved when a user enters a domain name. It is important that the overall structure of the DNS market within a country provide a competitive environment, at least at the registrar level.

One key decision is whether the ccTLD should be structured more openly so that anyone, even non-residents, can register, or whether to reserve the ccTLD exclusively for local residents and companies. CcTLD administrators in developing countries can enhance domain name registration practices by (i) ensuring that standard agreements exist for domain name registrants setting out their rights and obligations; (ii) ensuring equal treatment of all eligible registrants requesting domain names; (iii) making the policies and procedures of the ccTLD available on the Internet for public inspection; (iv) establishing a clear policy for maintaining registrants contact information, and for protecting their privacy; and (v) establishing a dispute resolution policy.

Increasing amounts of information are becoming available to developing country experts to assist in formulating an appropriate approach for management of the ccTLD. Developing-country ccTLD managers should become involved in the relevant forums for exchanging information about and participating in the DNS; information about ccTLD organisations is provided in this chapter.

The Internet Corporation for Assigned Names and Numbers (ICANN) is a central player in the management of the DNS, with its governance and coordinating functions extending to many areas of importance. While it has achieved a number of important milestones, it has not been able to avoid continuing questions concerning its structure, its basis for legitimacy, its sources of funding and its international representativeness. Unlike a treaty-based organisation, ICANN was established as a private-sector organisation with responsibility for coordinating the DNS in a number of key areas. ICANN has been funded through the registries and registrars participating in the global DNS and has introduced the concept of "accreditation'' for companies seeking to offer registry and/or registrar services for the generic top-level domains (gTLDs) in the DNS. One issue of special concern to developing countries is that most ccTLD administrators have yet to sign any formalised agreement with ICANN. Such an agreement would define rights and responsibilities, including funding commitments.

A reform process is underway for ICANN. For developing countries, the reform of ICANN is an important issue because it gives these countries a renewed opportunity to engage in the ICANN process, either directly or through their regional ccTLD organisations so that their perspectives, requirements and international diversity are duly taken into account.

Domain names have generated a number of legal issues, key among them the tension arising from conflict between domain names and the system for protecting trademark rights.

After a somewhat painful transition period in which trademark owners and domain name registrants, and various other stakeholders, have battled to draw the lines that should delimit fair as opposed to abusive practice, the situation is much improved today. The avoidance of such disputes is an objective being pursued, albeit not without problems, in the implementation of the new gTLDs (example: .biz and .info). More significantly, the implementation and acceptance of an international dispute resolution system, the Uniform Domain Name Dispute Resolution Policy (UDRP), which applies to registrations in the gTLDs and in some ccTLDs, has allayed concerns. The UDRP was adopted by ICANN in late 1999, and since then more than 6,000 cases have been filed under the procedure. The UDRP is administered by multiple dispute-resolution service providers applying a uniform procedure. This uniformity works to enhance a general understanding of the UDRP, which is of benefit to all parties, be they in developed or developing countries.

The UDRP sets out bright-line criteria for determining whether a domain name registration should be considered abusive, and the scope of the remedies relates only to the status of the domain name registration. The cost of bringing a claim under the UDRP is reasonable even for parties in developing countries. The complainant is normally required to cover the costs of the procedure, unless the respondent has demanded a three-member panel, in which case the parties share the extra costs of the panel.

The UDRP has met with widespread international acceptance. Complainants entrusting cases to the procedure include businesses from every sector of commerce, including many smaller enterprises and individuals from various countries, and the parties filing or defending cases have come from more than 70 countries on every continent.

At the same time, a number of criticisms have been lodged against the UDRP, including that it promotes forum shopping among the dispute-resolution service providers and that the decisions themselves are inconsistent and sometimes poorly reasoned. These criticisms have engendered responses in the ongoing discussions concerning the UDRP, including the suggestion that an appeals mechanism be established. It is important that developing countries become involved in the current UDRP debate and in the discussions taking place as to whether protection should be provided in the DNS for categories of identifiers other than trademarks, such as personal names, geographical indications or trade names, to name a few.